Understanding Excluded Corporations in Australian Defamation Law

Introduction: The Deep Cycle Systems Case

A Queensland District Court decision has provided valuable guidance on what constitutes an "excluded corporation" under Australian defamation law. In Deep Cycle Systems Pty Ltd v Fischer [2025] QDC 25, a lithium battery manufacturer sued for defamation over publications made between August and December 2023. The defendant successfully applied for a separate determination of whether the plaintiff was an excluded corporation under section 9 of the Defamation Act 2005 (Qld). The court ultimately found that the plaintiff failed to establish it was an excluded corporation, meaning it could not maintain its defamation action.

The Statutory Framework

Under section 9(1) of the Defamation Act 2005, a corporation has no cause of action for defamation in relation to the publication of defamatory matter unless it was an "excluded corporation" at the time of publication. This provision exists across all Australian jurisdictions as part of the uniform defamation legislation.

To qualify as an excluded corporation under section 9(2), a corporation must satisfy two requirements:

1. It employs fewer than 10 persons; and

2. It is not an associated entity of another corporation.

Both elements must be established on the balance of probabilities at the time of the relevant publications.

The Employee Test: A Broader Definition

The definition of "employee" in section 9(6) extends beyond traditional common law employment concepts. As noted in Aaren Pty Ltd trading as Price Beat Travel v Arya [2020] NSWDC 657, following observations in Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421, the relationship between the corporation and its employees need not be direct.

In Deep Cycle Systems, the court considered various categories of workers:

• Direct employees under contract

• Freelance engineers

• Family members working voluntarily

• Dealers and distributors

• Potential overseas workers

The court found that dealers who could be terminated for failing to meet "minimum dealer requirements" fell within the broad definition of employees. However, mere volunteers, such as family members working without payment, were not considered employees.

The Associated Entity Test

The second limb requires corporations to prove they are not an "associated entity" of another corporation. This term takes its meaning from section 50AAA of the Corporations Act 2001 (Cth).

Under section 50AAA(7), the test is satisfied where:

• A third entity controls both the principal and the associate; and

• The operations, resources or affairs of the principal and the associate are both material to the third entity.

The Materiality and Nexus Requirement

Following Fair Work Ombudsman v Priority Matters Pty Ltd & Anor [2016] FCCA 1474, there must be a nexus between the associated entities in their respective operations, resources or affairs that are jointly material to the third entity. It is not sufficient that each entity is separately material to the controlling entity.

"Material" is understood to mean "of substantial import or much consequence" or "important or having an important effect." The determination of materiality depends on issues of fact and degree.

Key Indicators of Association

In Deep Cycle Systems, the court found the corporations were associated entities based on several factors:

1. Shared financial resources: Use of a single credit card for both companies' expenses with only annual reconciliation

2. Inter-company loans: Significant loans between the entities and to the controlling director

3. Shared physical assets: Vehicles and equipment used by both companies

4. Cross-promotional activities: Use of one company's marketing channels to advertise the other's products

5. Financial interdependency: Movement of money between entities suggesting joint income generation

The court emphasized that while separate business operations and accounting systems are relevant, they do not necessarily prevent a finding of association where other factors demonstrate material interdependency.

Practical Implications

For corporations contemplating defamation proceedings, establishing excluded corporation status requires careful attention to:

1. Accurate employee counting: Include all workers falling within the expanded definition, including contractors, dealers, and others under the corporation's direction or control

2. Documentary evidence: Maintain clear records of employment arrangements and corporate structures

3. Financial separation: Ensure genuine independence between related entities, particularly in financial dealings

4. Credibility: The court will carefully scrutinize evidence, particularly where witnesses have made admittedly false statements about business arrangements

Conclusion

The Deep Cycle Systems decision reinforces that the excluded corporation provisions are interpreted strictly. Corporations must satisfy both limbs of the test with credible evidence. The broad definition of "employee" and the practical approach to determining "associated entity" status mean that many corporations that might consider themselves small or independent may still be unable to sue for defamation.

Legal practitioners should carefully assess their corporate clients' structures and operations before commencing defamation proceedings, as failure to establish excluded corporation status will result in the proceedings being dismissed, potentially with adverse costs consequences.

Offers to Make Amends in Defamation Law: Key Considerations for Publishers

Introduction

The Queensland Supreme Court decision in McVicker v Nine Digital Pty Ltd [2025] QSC 110 provides valuable guidance on the operation of offers to make amends under defamation legislation. In this case, Mr McVicker sued Nine Digital over three articles published on the 9Finance and A Current Affair websites concerning the collapse of online travel agency Bestjet. Nine Digital successfully defended the claim by establishing it had carried out the terms of an accepted offer to make amends, thereby engaging the statutory bar under section 17(1) of the Defamation Act 2005 (Qld). The dispute centered on whether Nine Digital had properly published the agreed correction on its websites, with the Court ultimately finding in the publisher's favor.

The Statutory Framework

Under Division 1 of Part 3 of the Defamation Act 2005, publishers have an opportunity to resolve defamation claims through the offer to make amends procedure. Section 14 provides that a publisher may make an offer to make amends in response to a concerns notice, while section 15 sets out the requirements for such offers.

Critically, section 17(1) provides that if a publisher carries out the terms of an accepted offer to make amends (including payment of any compensation), the aggrieved person cannot assert, continue or enforce an action for defamation in relation to the matter in question. This creates a complete defense to the defamation claim, even if the offer was limited to particular defamatory imputations.

Key Elements of an Effective Offer

An offer to make amends typically includes:

1. Removal of the offending material - The publisher agrees to remove the allegedly defamatory content from its platforms

2. Publication of a correction or apology - A written correction must be published in terms agreed between the parties

3. Payment of legal costs - The publisher must pay the aggrieved person's reasonably incurred legal costs

4. Notification to third parties - If the material was given to others, the publisher must inform them it may be defamatory

Construction of Agreements Formed by Acceptance

When disputes arise about whether a publisher has carried out the terms of an accepted offer, courts apply ordinary principles of contractual construction. As confirmed in McVicker v Nine Digital Pty Ltd [2025] QSC 110, agreements formed by acceptance of offers to make amends are construed objectively by reference to text, context and purpose, following the approach in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37.

The New South Wales Court of Appeal decision in Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259 established that while ordinary contractual principles apply to construction, the formation of such agreements is governed by the statutory regime rather than general contract law.

Publication Requirements: "Websites" vs "Homepages"

A crucial issue in McVicker v Nine Digital Pty Ltd [2025] QSC 110 was the interpretation of an agreement to publish a correction "on the 9Finance and A Current Affair websites." The plaintiff argued this required publication on the homepages or with equal prominence to the original articles.

The Court rejected this argument, finding:

• The parties had a clear understanding of the distinction between websites and homepages, as evidenced by their correspondence

• The agreed correction was published at unique URLs on both websites, with links appearing on the homepages for at least 24 hours

• This mirrored how the original articles were published

• There was no requirement for "equal prominence" beyond what was expressly agreed

Avoiding the Pitfalls: Lessons from Hafertepen

The Federal Court decision in Hafertepen v Network Ten Pty Ltd [2020] FCA 1456 provides a cautionary tale. In that case, the agreed clarification was published in an obscure location on the "terms of use" page at the bottom of the website. The Court found this did not satisfy the publisher's obligations.

Publishers should ensure corrections are:

• Published in accessible locations on their websites

• Available for the agreed duration

• Not hidden in obscure or difficult-to-find pages

• Accompanied by appropriate links where agreed

The Importance of Clear Drafting

The McVicker case demonstrates the critical importance of precise language when negotiating offers to make amends. Publishers and complainants should:

• Clearly specify where corrections will be published (homepage, website, or both)

• Define the duration of publication

• Agree on the exact wording of corrections

• Consider whether links or tiles will be used and for how long

• Document all agreed terms in writing

Practical Considerations

When making or responding to offers to make amends, parties should:

1. Act promptly - Strict time limits apply under section 14

2. Be specific - Vague terms lead to disputes

3. Consider prominence - While "equal prominence" may not be implied, parties can expressly agree to specific prominence requirements

4. Document compliance - Publishers should maintain evidence of publication, including screenshots and viewership data

5. Communicate clearly - Distinguish between websites, homepages, and other digital platforms

The Objective Framework

As emphasized in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24, courts look to the objective framework of facts within which agreements come into existence. In the digital context, this includes understanding how content is typically published and accessed on websites, the usual duration of homepage prominence, and the technical distinctions between different parts of websites.

Conclusion

The offer to make amends procedure provides a valuable mechanism for resolving defamation disputes without litigation. However, as McVicker v Nine Digital Pty Ltd [2025] QSC 110 demonstrates, the success of this mechanism depends on clear communication, precise drafting, and proper implementation of agreed terms. Publishers who carefully document their compliance with accepted offers can rely on the strong statutory defense provided by section 17(1). Conversely, complainants should ensure their expectations are clearly expressed and agreed in writing before accepting offers. With proper attention to detail, the offer to make amends procedure can achieve its purpose of facilitating early resolution of defamation claims.

Malice in Defamation: When Improper Purpose Defeats Privilege

The Harvey v Henderson Case: A Recent Example

The New South Wales Supreme Court decision in Harvey v Henderson [2025] NSWSC 601 provides valuable insights into the role of malice in defamation proceedings. The case involved a wildlife carer and charity founder who sued two former committee members over emails and social media posts alleging fraud and misuse of charitable funds. The defendants had published various communications suggesting the plaintiff was running the Wild2Free charity as a "private fundraiser" for herself and had engaged in "fraudulent conduct." While some publications were protected by qualified privilege due to the parties' roles as committee members, the case ultimately turned on whether malice could be established to defeat these defences.

Understanding Malice in Defamation Law

Malice in defamation law is not simply ill-will or spite, though these may form part of it. As the court in Harvey v Henderson noted, drawing from established authority, malice consists of one of three things: personal spite, an intention to injure the plaintiff without just cause, or knowledge of the falsity of what is said. The formulation derives from well-established principles, as cited in Australand Holdings Ltd v Transparency and Accountability Council Incorporated [2008] NSWSC 669, which referenced the authoritative text Clerk & Lindsell on Torts.

However, malice is not limited to these three categories. Any improper motive may constitute malice sufficient to defeat a defence of qualified privilege. This was affirmed in Harvey v Henderson, where the court acknowledged that malice could extend beyond the traditional categories to encompass any purpose not covered by the privilege being claimed.

The Relationship Between Malice and Qualified Privilege

Qualified privilege provides a crucial defence in defamation proceedings, protecting communications made in certain circumstances where freedom of expression serves the public interest. As the High Court explained in Cush v Dillon; Boland v Dillon (2011) 243 CLR 298, qualified privilege is based on public policy that recognises freedom of communication may sometimes be more important than protecting individual reputation.

However, this protection is not absolute. The privilege is qualified by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement. As stated in Roberts v Bass (2002) 212 CLR 1, express malice defeats the privilege when the defendant uses the privileged occasion for a reason not referable to the duty or interest pursued.

In Harvey v Henderson, the court emphasised that even where qualified privilege might otherwise apply - such as communications between board members about potential misconduct - the defence fails if the dominant purpose for the publication was improper. The mere existence of a legitimate occasion for communication does not provide carte blanche to defame.

The Burden and Standard of Proof

Crucially, the burden of proving malice rests with the plaintiff. Once a defendant establishes that qualified privilege applies, the plaintiff must prove malice to defeat the defence. This allocation of burden reflects the law's recognition that those communicating on privileged occasions should not be too readily stripped of protection.

The standard of proof remains the civil standard - balance of probabilities. However, as noted in Harvey v Henderson, where allegations of fraud or dishonesty are involved, the court must be conscious of the gravity of such allegations, following the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.

It's important to note that under section 36 of the Defamation Act 2005 (NSW), the court must disregard the defendant's malice or state of mind when awarding damages, except to the extent that it affects the actual harm sustained by the plaintiff. This statutory provision ensures damages remain compensatory rather than punitive, even where malice is established.

What Does and Doesn't Constitute Malice

The Harvey v Henderson decision provides helpful guidance on what will and won't establish malice:

What may constitute malice:

• Knowledge that the published material is false

• Publishing for a purpose unrelated to the privileged occasion

• Personal spite or desire to injure without justification

• Using defamation as leverage for unrelated gains

• Conduct during litigation, including prolonged hostile cross-examination or pursuing a defence bound to fail (as noted in Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194)

What doesn't necessarily constitute malice:

• Conducting a campaign of publications (unless for an improper purpose)

• Strong belief in the truth of allegations, even if ultimately unproven

• Multiple complaints to authorities, if genuinely held

• Failure to apologise (though this may affect damages)

• Publishing material that turns out to be false, without knowledge of falsity

Importantly, Harvey v Henderson clarified that neither lack of belief in the truth of a statement nor its objective falsity is sufficient alone to establish malice and destroy qualified privilege. This protects those who communicate in good faith on privileged occasions, even when mistaken.

Mixed Purposes and Dominant Motive

A significant aspect of the malice analysis involves situations where a defendant may have multiple reasons for publishing defamatory material. As Harvey v Henderson demonstrates, conduct may have several purposes. The court must identify the "substantial or operative purpose" for the publication. Only when this dominant purpose is improper will malice be established.

In that case, while the defendants may have been motivated by grievances about fund distribution and equipment allocation, the court was not satisfied that any improper purpose was the operating factor in their publications to fellow board members about governance concerns.

The Distinction Between Malice and Aggravated Damages

Harvey v Henderson also illustrates the important distinction between malice for defeating qualified privilege and malice for aggravated damages. While the court found insufficient evidence of malice to defeat qualified privilege for certain publications, it separately considered whether malice existed for the purpose of awarding aggravated damages.

The Statutory Framework: Section 36 of the Defamation Act

A critical provision governing the role of malice in damages is section 36 of the Defamation Act 2005 (NSW), which states:

"In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff."

This provision fundamentally shapes how courts approach malice in the damages context. As Harvey v Henderson demonstrates, the court must ensure there is a rational relationship between the harm sustained and damages awarded, regardless of the defendant's malice or state of mind. Malice can only influence damages to the extent it actually increases the harm suffered by the plaintiff.

Practical Effect of Section 36

The statutory limitation means that:

1. Malice is not punitive: Courts cannot increase damages simply to punish a malicious defendant

2. Focus on actual harm: The relevant inquiry is whether the defendant's malice caused additional harm to the plaintiff

3. Examples of increased harm: Malice might increase harm where:

   • The defendant's known spite makes the publication more hurtful to the plaintiff

   • Malicious intent becomes known to others, compounding reputational damage

   • The manner of publication, driven by malice, increases the spread or impact

When malicious intent becomes known to others: This occurs where the defendant's improper motive becomes apparent to those who read or hear about the defamatory publication. For instance, if readers become aware that the defendant published the material out of spite or to gain leverage in an unrelated dispute, this knowledge may cause them to discuss the allegations more widely or view the plaintiff with additional suspicion. The "grapevine effect" can be amplified when the audience knows the publication was maliciously motivated, as it may lend a perverse credibility to the allegations ("there must be something to it if they're so determined to destroy her"). In Harvey v Henderson, evidence of the defendants' campaign and circulation of court documents could potentially fall into this category, though the court ultimately found insufficient evidence of malice.

When manner of publication increases spread or impact: Malice may drive a defendant to publish in a particularly damaging way - choosing the widest possible audience, the most damaging forum, or timing publication for maximum harm. For example, a defendant acting maliciously might post on multiple social media platforms rather than sending a private email, might choose inflammatory language designed to go viral, or might time publication to coincide with the plaintiff's important business dealings. In Harvey v Henderson, the defendants' use of public Facebook pages rather than private communications to committee members could be seen as an example, though the court noted the posts were removed quickly, limiting their impact.

Aggravated damages remain compensatory in nature, not punitive. As the High Court stated in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, such damages compensate for additional harm caused by the defendant's conduct that is "improper, unjustifiable or lacking in bona fides." The absence of an apology, while not establishing malice to defeat privilege, may be relevant to the plaintiff's hurt feelings and thus ordinary compensatory damages.

Practical Implications

For legal practitioners, Harvey v Henderson reinforces several key principles:

1. Document the legitimate purpose: When advising clients who need to communicate potentially defamatory material on a privileged occasion, ensure they can articulate and document the legitimate purpose for the communication.

2. Stay within bounds: Communications should be limited to what is relevant and necessary for the privileged purpose. In Harvey v Henderson, social media posts attacking a third party in response to criticism were held to fall outside the privilege of reply to attack.

3. Consider the audience: Qualified privilege based on duty or interest requires reciprocity. Publishing to the world at large on social media will rarely attract privilege, as the court noted regarding the ABC South East NSW Facebook page posts.

4. Belief in truth matters: Honest belief in the truth of defamatory statements, while not a complete defence, makes proving malice significantly more difficult for a plaintiff.

5. Timing and context: The court will examine the entire context, including what precipitated the publications and their timing relative to other events or disputes.

Conclusion

The role of malice in defamation law represents a careful balance between protecting reputation and preserving freedom of communication on matters of legitimate interest. Harvey v Henderson [2025] NSWSC 601 demonstrates that while qualified privilege provides important protection for necessary communications, it cannot be used as a shield for publications motivated by improper purposes.

Understanding when malice will be found requires careful analysis of the publisher's dominant motive, the relationship between the parties, and the connection between what was published and any legitimate interest or duty. For those operating in positions of responsibility - whether as company directors, committee members, or in other fiduciary roles - the case underscores both the protection available for proper governance communications and the limits of that protection when improper purposes intrude.

The Sufficient Connection Test in Qualified Privilege: When Defamatory Statements Are Germane to the Protected Occasion

Introduction: The Slater v Ecosol Case

The decision in Slater v Ecosol Pty Ltd [2025] SASCA 78 provides guidance on when defamatory statements are sufficiently connected to an occasion of qualified privilege.

The case involved a dispute over the proposed sale of a stormwater treatment manufacturing business. Mr Slater, a shareholder, opposed the sale to management (through Urban Asset Solutions Pty Ltd) and communicated his concerns to fellow shareholders. In response, the company's chairman, Mr Smith, sent letters to shareholders that included statements Mr Slater claimed were defamatory – including imputations that he had lied to shareholders and was improperly motivated. While the trial judge found the statements were defamatory, the defence of qualified privilege succeeded because the statements were sufficiently connected to the privileged occasion of communicating with shareholders about the proposed transaction.

The Broad Approach to Connection

The law takes a deliberately broad view of what constitutes a sufficient connection to a privileged occasion. As the Court in Slater v Ecosol emphasised, statements need not be central to the topic or contribute positively to the discussion to attract protection. Drawing on the High Court's guidance in Cush v Dillon (2011) 243 CLR 298, the Court confirmed that "no narrow view should be taken of the pursuit of a duty or interest in what was said."

This broad approach reflects the underlying rationale of qualified privilege – that in certain circumstances, a plaintiff's right to protect their reputation must yield to the public interest in free communication on matters of legitimate concern (Roberts v Bass (2002) 212 CLR 1; Stone v Moore (2016) 125 SASR 81).

Key Principles from the Authorities

Relevance and Germaneness

The fundamental test is whether the defamatory matter is "relevant" or "germane" to the privileged occasion. In Adam v Ward [1917] AC 309, various formulations were used:

• Matter that is "not relevant and pertinent" to the occasion

• Something "beyond what was germane and reasonably appropriate to the occasion"

• Matter "quite unconnected with and irrelevant to the main statement"

• Matter "not in any reasonable sense germane" to what was being conveyed

As Cush v Dillon clarified, these different formulations should not be read as imposing varying levels of stringency – the key point is that the law does not require a narrow view of relevance.

Errors and Inaccuracies Don't Break the Connection

Importantly, the fact that a statement is wrong, defamatory, or even excessive does not automatically mean it lacks sufficient connection. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, an error in identifying the party subject to court findings did not sever the connection to the privileged occasion. Similarly, in Cush v Dillon, referring to a rumour as fact (when discussing governance concerns) maintained the requisite connection.

The Distinction Between Excessive and Extraneous

There is a crucial distinction between statements that are excessive yet within the privileged occasion, and statements that exceed the occasion by being irrelevant (Marshall v Megna [2013] NSWCA 30). As Stone v Moore explained, the focus is on the topic in respect of which the relevant duty or interest exists, not the precise words spoken. Even strident, incorrect or extravagant language can be protected if it relates to the privileged topic.

Self-Defence and Rebuttal

The authorities recognise that "great latitude" must be allowed to persons defending themselves against attacks (Penton v Calwell (1945) 70 CLR 219; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251). This principle was relevant in Slater v Ecosol, where the company's responses to Mr Slater's criticisms were held to be sufficiently connected to the privileged occasion.

Practical Examples: When Connection May Be Lost

Example 1: The Board Meeting Discussion

At a company board meeting convened to discuss the annual budget, a director raises concerns about proposed cost-cutting measures. During the discussion, she states: "The CFO's budget projections are as reliable as his taste in music – I saw him at that terrible boy band concert last week with someone who definitely wasn't his wife."

While criticising the CFO's budget projections would be germane to the occasion, the gratuitous comments about his musical preferences and personal life would likely not be sufficiently connected. These statements are "quite unconnected with and irrelevant" (Adam v Ward) to the budgetary discussion that creates the privileged occasion.

Example 2: The Workplace Safety Report

A workplace safety officer sends a report to management about safety breaches in the warehouse. The report includes: "John Smith has repeatedly operated the forklift at dangerous speeds in the loading bay. This doesn't surprise me given that he was convicted of drink driving last year and his ex-wife told me he's a compulsive gambler who owes money all over town. Someone with such poor judgment in their personal life obviously can't be trusted with workplace safety."

While the observations about John Smith's forklift operation would be germane to the privileged occasion, the gratuitous references to his criminal history and alleged gambling problems bear no reasonable connection to workplace safety concerns. Following Guise v Kouvelis (1947) 74 CLR 102, such comments would be "so foreign to the occasion that they must be held to be extraneous or irrelevant."

The Position of Directors and Fiduciaries

The Slater v Ecosol decision also clarifies that a person's position or duties (such as being a director or fiduciary) does not narrow the scope of privileged occasion or impose additional constraints on what can be said. The Court rejected arguments that directors must confine themselves to statements that "contribute to" or "assist" debate. As long as the statements relate to the privileged topic in the broad sense recognised by the authorities, they remain protected even if they are attacks on character or motivation.

Practical Checklist: Assessing Whether Statements Are Germane

When advising on whether defamatory statements are sufficiently connected to a privileged occasion, practitioners should work through the following comprehensive checklist:

1. Identify the Privileged Occasion

• What is the precise nature of the duty or interest that creates the privilege?

  • Is it a legal duty, moral duty, or social duty?

  • Is it a public interest or private interest?

  • Who are the relevant parties to the privileged communication?

• What is the scope of the subject matter covered by the privilege?

  • Define the topic broadly rather than narrowly

  • Consider all aspects reasonably connected to the main subject

  • Remember that tangential matters may still be included

2. Analyse the Context of the Communication

• What prompted the communication?

  • Was it in response to an attack or criticism? (Remember the "great latitude" principle)

  • Was it initiated by the publisher or reactive?

  • What was the timeline of communications?

• What was the publisher's role or position?

  • While position doesn't narrow the privilege, it provides context

  • Consider whether the publisher had authority to speak on the matter

  • Note any special knowledge or expertise relevant to the topic

3. Examine the Defamatory Statements

• How do the statements relate to the privileged topic?

  • Do they directly address the subject matter?

  • Are they examples or illustrations of points about the topic?

  • Do they provide context or background to the main issue?

• If the statements attack character or motivation:

  • Is the person's character relevant to their role in the privileged matter?

  • Do the attacks relate to their conduct concerning the privileged topic?

  • Are they responding to attacks made by that person?

4. Apply the Legal Tests

• The "Adam v Ward" formulations - are the statements:

  • "Relevant and pertinent" to the discharge of duty or protection of interest?

  • Within what is "germane and reasonably appropriate to the occasion"?

  • Not "quite unconnected with and irrelevant to the main statement"?

  • Not matter that is "not in any reasonable sense germane"?

• The "Guise v Kouvelis" test:

  • Are the words "so foreign to the occasion that they must be held to be extraneous or irrelevant"?

5. Consider Common Scenarios

• If the statements contain errors or are false:

  • Remember this doesn't automatically break the connection (Bashford)

  • Focus on subject matter, not accuracy

• If the statements are excessive or extravagant:

  • Distinguish between excessive language about the relevant topic (likely protected)

  • Versus statements about extraneous matters (not protected)

• If the statements seem unhelpful or unconstructive:

  • The law doesn't require statements to advance debate positively

  • Even counterproductive statements can be germane

6. Red Flags - Factors Suggesting Lack of Connection

• Purely personal attacks unrelated to the privileged matter

  • References to unrelated personal relationships

  • Attacks on characteristics irrelevant to the topic

  • Historical grievances with no bearing on current matter

• Subject matter from entirely different spheres

  • Professional criticism veering into unrelated personal life

  • Business discussions including irrelevant social commentary

  • Official communications containing private vendettas

• Timing disconnects

  • References to events far removed in time with no logical connection

  • Dragging in historical matters not relevant to current issue

7. Special Considerations

• For company/shareholder communications:

  • Broad scope for discussing company affairs, transactions, and governance

  • Criticism of directors/management conduct generally germane

  • Shareholder activism and opposition typically within scope

• For employment references:

  • Focus on work performance and conduct

  • Personal life only relevant if impacts work capacity

• For public interest communications:

  • Wider scope for discussion of public figures

  • Context of public debate allows broader range of comment

8. Document Your Analysis

• Create a clear record showing:

  • The identified privileged occasion and its scope

  • How each defamatory statement relates to that occasion

  • Any statements that may fall outside protection

  • The authorities supporting your conclusions

9. Borderline Cases

• When connection is arguable:

  • Remember the broad approach mandated by Cush v Dillon

  • Consider whether a reasonable person would see some relationship to the topic

  • If genuinely borderline, the broad approach suggests inclusion

• Mixed communications:

  • Separate germane from non-germane portions

  • Privilege protects the connected statements even if others are not protected

10. Final Review Questions

• Have I taken too narrow a view of the privileged occasion?

• Have I focused on the topic rather than the specific words used?

• Would excluding these statements unduly restrict free communication on the privileged matter?

• Is there any reasonable argument connecting the statements to the privileged topic?

This checklist should be applied flexibly, remembering that the law favours protection of free communication on matters of legitimate interest. When in doubt, the authorities suggest taking a broad rather than narrow approach to connection.

Conclusion

The sufficient connection test in qualified privilege requires courts to take a broad, practical approach. Defamatory statements will be protected if they are relevant and germane to the privileged occasion, even if they are wrong, excessive, or unhelpful to constructive debate. Only statements that are truly extraneous or irrelevant to the privileged topic will fall outside protection. For practitioners, this means carefully identifying the scope of the privileged occasion and assessing whether impugned statements relate to that topic, however tangentially. The law's broad approach reflects the importance placed on protecting free communication on matters of legitimate interest, even when that communication is robust, mistaken, or defamatory.

Suppression Orders in Defamation Cases: Balancing Open Justice with the Protection of Minor Witnesses

Introduction: The Kerry Case

A decision of the NSW Supreme Court in Kerry v The New South Wales Ice Skating Association Inc [2025] NSWSC 833 provides important guidance on when courts will grant suppression orders to protect the identities of minors and alleged victims of sexual misconduct in defamation proceedings. The case involved an Australian Olympian and coach who sued for defamation after the defendant published a note to its members about sanctions imposed by the US Centre for SafeSport. The sanctions related to findings of sexual misconduct involving two individuals: a 17-year-old in California (where the age of consent is 18) and a 14-year-old in Queensland. The Court granted suppression orders protecting both individuals' identities, despite the plaintiff's opposition.

The Principle of Open Justice

The starting point for any discussion of suppression orders is the fundamental principle of open justice. As Rothman J noted in Kerry, the primary objective of the administration of justice is to safeguard the public interest in open justice, which is "generally, fundamental to the proper administration of justice and to the democratic nature of society."

However, this principle is not absolute. The Court of Criminal Appeal in R v Kwok & Ors [2005] NSWCCA 245 recognised two distinct classes of exception:

1. Exceptions based on general considerations relating to the administration of justice

2. Exceptions where specific considerations concerning a specific witness or person affect the administration of justice

Special Considerations for Sexual Offence Victims

Courts have long recognised that victims of sexual offences, particularly minors, warrant special protection. In Kwok, the Court of Criminal Appeal explained that there are "recognised categories in which the publication of names may, as a matter of necessity, be prohibited," including victims of sexual offences alongside informers and victims of blackmail.

The rationale is compelling. As the Court observed in Kwok:

• Publication of victims' identities can further the criminal activity of perpetrators[^1]

• It inhibits victims from giving evidence and reporting crimes

• Child victims particularly face difficulties reporting abuse when publicity becomes a detriment to their mental health

[^1]: This principle recognises that perpetrators may use the threat of public exposure as a tool of control over their victims. In cases involving blackmail or sexual offences, the fear of public identification can prevent victims from reporting crimes or cooperating with authorities, thereby allowing perpetrators to continue their criminal conduct. As noted in Kwok, this creates a parallel with blackmail cases where "the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime."

Legislative Protections for Child Victims

The Kerry case highlighted how each Australian state and territory has enacted specific protections for child victims of sexual offences. In Queensland, the Child Protection Act 1999 makes it a criminal offence to publish identifying information about a "relevant person" - defined as a child in relation to whom an offence was committed or alleged to have been committed. Section 194 provides for significant penalties: up to 100 penalty units or 2 years imprisonment for individuals.

This legislative framework reflects society's recognition that child victims of abuse are often traumatised by the conduct itself, and that public identification represents "an aggravating feature of the trauma and damage that occurs as a consequence of that abuse."

The Test for Suppression Orders

When determining whether to grant suppression orders, courts apply the test of "necessity" - but this doesn't mean "essential." As the High Court clarified in Pelechowski v The Registrar, Court of Appeal (1998) 198 CLR 435, necessary in this context means orders that are "reasonably required" or "legally ancillary" to the accomplishment of justice. The term is "subjected to the touchstone of reasonableness."

In the defamation context, courts will consider whether suppression orders are necessary to:

• Prevent prejudice to the proper administration of justice[1]

• Protect the safety of persons

• Serve the public interest

Practical Implications for Defamation Proceedings

The Kerry decision demonstrates that suppression orders in defamation cases:

• Do not prevent the examination of the court's jurisdiction or inhibit public scrutiny of judgments

• Can be limited to protecting specific identities while maintaining transparency of proceedings

• Create confidence in victims to give evidence openly without fear of exposure

• Encourage other victims to come forward

Importantly, mere embarrassment is insufficient to warrant suppression. As Rothman J noted, "Each criminal charge creates embarrassment." The court requires evidence of genuine harm or impediment to justice.

Balancing Competing Interests

Courts must carefully balance the public interest in open justice against other compelling interests. In Kerry, the Court found that protecting the identities of alleged sexual misconduct victims - particularly the 14-year-old - significantly outweighed the public interest in full disclosure of names.

This balancing exercise recognises that suppression orders can actually serve the administration of justice by:

• Ensuring witnesses feel safe to give evidence

• Maintaining public confidence in the justice system's ability to protect vulnerable witnesses

• Preventing further trauma to victims who have already suffered harm

Conclusion

The Kerry decision reinforces that while open justice remains the cornerstone of our legal system, courts retain discretion to make limited suppression orders where necessary to protect vulnerable witnesses and ensure the proper administration of justice. For practitioners in defamation matters involving allegations of sexual misconduct or minor witnesses, early consideration should be given to whether suppression orders may be appropriate. The key is demonstrating not just potential embarrassment or discomfort, but genuine necessity based on harm prevention and the broader interests of justice.

When seeking such orders, practitioners should be prepared to provide concrete evidence of potential harm and frame their applications within the established categories recognised by the courts. The burden remains on the applicant to satisfy the court of necessity, but where minor victims of alleged sexual offences are involved, courts will give serious consideration to protective orders that maintain the substance of open justice while shielding vulnerable individuals from unnecessary harm.

Footnote:

1. This principle recognises that perpetrators may use the threat of public exposure as a tool of control over their victims. In cases involving blackmail or sexual offences, the fear of public identification can prevent victims from reporting crimes or cooperating with authorities, thereby allowing perpetrators to continue their criminal conduct. As noted in Kwok, this creates a parallel with blackmail cases where "the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime."

Costs Payable "In Any Event" in Interlocutory Proceedings

Introduction

The District Court of Western Australia has developed a distinct practice regarding the timing of costs orders in interlocutory proceedings. Unlike the Supreme Court, which generally orders costs to be paid forthwith pursuant to Consolidated Practice Direction 4.7.1, the District Court maintains a "usual practice of ordering the payment of costs from interlocutory hearings to be payable 'in any event'": QBE Insurance (Australia) Ltd v Coffey [2015] WADC 110 (S) at [61]. This practice reflects important policy considerations regarding the efficient administration of justice and the fair allocation of litigation risks between parties.

The General Rule

As articulated by Davis DCJ in QBE Insurance v Coffey, the phrase "in any event" means that costs are to be paid at the conclusion of the proceedings, regardless of the ultimate outcome of the substantive matter. His Honour observed at [61] that "the practice in this court is not to make an order for payment of costs forthwith unless there is something out of the ordinary so as to warrant the making of such an order." This principle has been consistently applied in District Court decisions: see Dakin Farms Pty Ltd v Elite Grains Pty Ltd [2012] WADC 43 at [52] (Commissioner Gething); Herbertson v Morton [2013] WADC 7 (S) at [7] (Eaton DCJ).

Rationale for the "In Any Event" Rule

The policy justifications for ordering costs "in any event" rather than forthwith were comprehensively explained in QBE Insurance v Coffey at [62], drawing upon the Federal Court's analysis in Mango Boulevard Pty Ltd v Whitton; in the matter of Spencer (Bankrupt) (No 2) [2011] FCA 845 at [23]. Davis DCJ identified three primary purposes:

1. Avoiding Multiple Taxations

The rule promotes judicial economy by consolidating all costs issues to be dealt with at the conclusion of the proceedings. This prevents the inefficiency of multiple taxation proceedings throughout the life of the litigation.

2. Preventing Apparent Unfairness

As noted at [62], the rule "avoids the apparent unfairness which may arise if, at an early stage in the proceedings, the party who is ultimately successful is required to pay costs to a party who is ultimately unsuccessful." This recognizes that interlocutory success may not translate to ultimate success in the substantive proceedings.

3. Preventing Tactical Exploitation

The rule "prevents interlocutory proceedings being used as a weapon to exhaust the financial resources of one of the parties": QBE Insurance v Coffey at [62], citing Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727; (2009) 257 ALR 503 at [20] (Besanko J). This is particularly important where there is a significant disparity in the financial resources of the parties.

When Costs May Be Ordered Forthwith

While the general rule favors costs being payable "in any event," the District Court retains discretion to order costs payable forthwith in exceptional circumstances. As stated in QBE Insurance v Coffey at [61], such an order will only be made where "there is something out of the ordinary so as to warrant the making of such an order."

The mere fact that interlocutory proceedings are "difficult, complex and important" or involve "substantial" quantum of costs does not, without more, justify departure from the usual practice: QBE Insurance v Coffey at [64]-[65]. In that case, Davis DCJ rejected arguments that costs should be paid forthwith despite the defendants' success in discharging a freezing order, finding at [70] that the plaintiff's application "was [not] ill-considered, or needless, or in the category of applications that ought to be discouraged."

Examples of circumstances that may warrant costs being paid forthwith include:

• Ill-considered or defective applications that fall within the category of proceedings that ought to be discouraged: Cristovao v Butcher Paull & Calder [2008] WADC 49 at [56]

• Needless applications that represent an abuse of process: Cristovao v Butcher Paull & Calder at [58]

• Unreasonable or reprehensible conduct by a party, coupled with long delays before final determination: Mango Boulevard Pty Ltd v Whitton at [24]

Relationship with Supreme Court Practice

It is important to note that the District Court's approach differs from the Supreme Court's practice under Consolidated Practice Direction 4.7.1, which provides that "as a general rule, when an order for costs is to be made against a party in interlocutory proceedings, the costs will be ordered to be paid forthwith or by a particular date": QBE Insurance v Coffey at [63].

However, as Davis DCJ acknowledged at [69], the Supreme Court's practice direction "may be a guide to the exercise of my discretion in an appropriate case in this court." The key consideration is whether the policy objectives underlying the Supreme Court's approach—particularly discouraging ill-considered or needless interlocutory applications—are engaged in the particular circumstances.

Practical Considerations

When considering whether to depart from the usual practice, the court should have regard to:

• The nature and merits of the interlocutory application

• The conduct of the parties

• Any disparity in financial resources between the parties

• The likely delay until final determination

• Whether the proceedings are likely to remain in the District Court or be transferred

As noted in QBE Insurance v Coffey at [74], where proceedings may be transferred to the Supreme Court, "there is no reason why taxation of the costs of these interlocutory proceedings could not take place in the Supreme Court, if this matter is transferred there, as the Determination also applies to the taxation of costs in the Supreme Court."

Conclusion

The District Court's practice of ordering costs "in any event" reflects a balanced approach to interlocutory costs orders that promotes efficiency, fairness, and access to justice. While the court retains discretion to order costs payable forthwith in appropriate cases, the general rule serves important policy objectives that should not be lightly displaced.

Sale of Land in Lieu of Partition: Conduct and Terms Under Section 126 of the Property Law Act 1969 (WA)

Introduction

The recent decision in Genders v Synergia Health Pty Ltd [2024] WASC 223 provides valuable guidance on the application of section 126(1) of the Property Law Act 1969 (WA), particularly regarding which party should have conduct of sale and the appropriate terms for such sales. In this case, Master Russell considered an application by Warren Gilbert Genders for summary judgment seeking the sale of two strata units in Beldon, Western Australia, which he owned as tenant in common with Synergia Health Pty Ltd in equal shares (paragraph 1). While the parties agreed the properties should be sold, they disputed who should conduct the sale and on what terms (paragraph 7).

The Statutory Framework

Section 126(1) of the Property Law Act 1969 (WA) provides that where parties holding at least a half share in land request the court to direct a sale and distribution of proceeds instead of partition, "the Court shall, unless it sees good reason to the contrary, direct a sale accordingly" (paragraph 33). The purpose of this provision is to provide a remedy for joint tenants or tenants in common who may otherwise lack adequate remedies to protect their interests in the event of disputes with co-tenants (Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 650, 656-657, cited at paragraph 34).

Importantly, as Master Sanderson observed in Trainor v Trainor [2021] WASC 40 at paragraphs 4-6, section 126(1) "does not embody a broad discretion in the court to grant or refuse an order for sale" (paragraph 35). The court's choice is limited to ordering either sale or partition, with no other alternatives available.

Determining Who Should Have Conduct of Sale

The Court's Discretion

The court possesses "a complete discretion as to who it will appoint to conduct a sale ordered under s 126(1) of the Act" (Bombara v Bombara [2010] WASC 314 at paragraph 80, cited at paragraph 38). While ordinarily the conduct of sale is given to the plaintiff as a matter of practice (Bombara v Bombara at paragraph 80, citing Dixon v Pyner (1850) 68 ER 135; Dale v Hamilton (1853) 68 ER 1116; and Murray v Geoffroy (1918) 18 SR (NSW) 259), this is not an inflexible rule (paragraph 39).

In exercising this discretion, the court must consider a broad range of factors, and good reasons might displace the ordinary course (Gray v Gray [2023] WASC 70 at paragraph 37, cited at paragraph 39). The overriding consideration is that any party having conduct must "act in good faith and in the interests of both parties in the conduct of the sale" (paragraph 64).

When Joint Conduct Is Inappropriate

The Genders decision provides clear guidance on when joint conduct of sale is unsuitable. Master Russell noted that where court determination of sale terms is necessary, "it is clear the parties are in dispute and there will likely be lack of cooperation, disagreement, and further dispute between the parties after the sale order is made" (paragraph 51, citing Manifis v Mouzalidis [2021] WASC 454 at paragraph 3).

Critical factors suggesting joint conduct is inappropriate include:

• Absence of positive evidence that parties can work together (paragraph 54)

• A broken-down relationship between the parties (paragraph 55)

• Risk that joint decision-making requirements will cause further disputes and delays (paragraph 57)

In Genders, Master Russell concluded that orders requiring both parties to agree on critical matters "would likely result in further dispute between them" with inevitable delays and increased costs (paragraph 57).

Factors Affecting Sole Conduct

When determining whether the plaintiff should have sole conduct, the court will consider any conduct that might disqualify them. In Genders, Synergia raised two objections: first, that Mr Genders might seek to acquire the property at undervalue (based on a three-year-old offer), and second, that he had withheld rent payments (paragraphs 45-46). Master Russell found neither reason sufficient to disqualify the plaintiff, noting his clear statement that he had no intention to purchase the properties and finding he was not responsible for loan defaults (paragraphs 61-62).

Terms of Sale

Method of Sale

The court has broad discretion in determining sale methods. Master Russell emphasized that orders under section 126 "are for the sale of property. They are not orders for sale at the best possible price" (Manifis v Mouzalidis [2021] WASC 454 at paragraph 8, cited at paragraph 74). While price is relevant and must be reasonable, it is not the sole consideration.

The appropriate approach is for the party with conduct to "tak[e] into account the agent's advice and recommendations, acting reasonably, as to which method or methods of sale are likely to result in the best outcome in terms of price, and achieving a completed sale as expeditiously as possible" (paragraph 75).

Protective Mechanisms

To protect the interests of the party not having conduct, courts typically include several safeguards:

1. Notice requirements: The conducting party must notify the other of key decisions, including chosen sale method and reasons for any changes (paragraph 65)

2. Information sharing: Real estate agents must provide copies of engagement agreements, offers received, signed contracts, and cost summaries to both parties simultaneously (proposed order 4(f), discussed at paragraph 66)

3. Acceptance restrictions: For sales other than by auction, the non-conducting party typically receives three days' notice before any offer is accepted (paragraph 67)

4. Reserve price protection: Sales below an agreed reserve may require consent or agent recommendation depending on timing (paragraphs 67-68)

5. Restrictions on self-dealing: To address concerns about conflicts of interest, courts may prohibit the conducting party from bidding during an initial period (paragraph 80)

Distribution of Proceeds

The net proceeds after deduction of sale costs are typically distributed according to the parties' ownership shares. Where secured debts exist, as with the Bank of Queensland loan in Genders, amounts owing are deducted from the responsible party's share to discharge registered mortgages (paragraph 76).

Conclusion

The Genders decision reinforces that while courts have broad discretion in appointing who conducts sales under section 126(1), this discretion must be exercised with regard to practical realities. Where relationships have broken down and cooperation is unlikely, joint conduct is inappropriate. The primary consideration remains achieving an effective sale that protects both parties' interests through appropriate safeguards and oversight mechanisms, rather than pursuing the theoretical best price at the cost of prolonged disputes and delays.

Mental Disability as a Prerequisite for the Appointment of an Administrator

Introduction

The decision in RN [2025] WASAT 46 provides guidance on the meaning and application of "mental disability" as a prerequisite for appointing an administrator under section 64 of the Guardianship and Administration Act 1990 (WA).

In this case, the State Administrative Tribunal considered whether a woman in her 60s who had fallen victim to a sophisticated international romance scam, losing at least $1 million over seven years, had a mental disability warranting the appointment of an administrator.

The Tribunal ultimately found that RN's combination of histrionic personality disorder and low average IQ constituted a mental disability within the meaning of the Act, with her abnormal susceptibility to exploitation being a significant symptom or manifestation of this disability.

The Statutory Framework

To appoint an administrator under the Guardianship and Administration Act 1990 (WA), section 64(1)(a) requires the Tribunal to be satisfied that the person is "unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate" (RN [2025] WASAT 46 at [31]).

This provision establishes a two-stage test: first, the existence of a mental disability, and second, a causal connection between that disability and the inability to make reasonable judgments about one's estate.

The term "mental disability" is defined inclusively in section 3 of the Guardianship and Administration Act 1990 (WA) to include "intellectual disability, a psychiatric condition, dementia, and acquired brain injury" (RN [2025] WASAT 46 at [32]). However, as the Full Tribunal clarified in FY [2019] WASAT 118, this definition is not exhaustive.

The Meaning of Mental Disability

The Full Tribunal's decision in FY [2019] WASAT 118 provides the authoritative interpretation of "mental disability" in Western Australian guardianship law. As cited in RN [2025] WASAT 46 at [32], the Full Tribunal held that:

"The ordinary meaning of the term 'mental disability' in the GA Act thus contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties" (FY [2019] WASAT 118 at [27]).

Importantly, the Full Tribunal emphasized that "the definition of 'mental disability' does not require any precise degree of mental disability, measured by reference to some medical or scientific benchmark" (FY [2019] WASAT 118 at [31], cited in RN [2025] WASAT 46 at [32]). This recognizes that mental ability exists along a spectrum, with various aspects of cognitive functioning including "the speed and ease of information processing, problem solving, reasoning, and memory" (FY [2019] WASAT 118 at [31]).

Furthermore, the Full Tribunal noted that while a mental disability may be "referrable to the existence of one, or a combination of more than one, identified medical conditions," in other cases "the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt" (FY [2019] WASAT 118 at [32], cited in RN [2025] WASAT 46 at [32]).

Application to Complex Cases

The decision in RN [2025] WASAT 46 demonstrates how the Tribunal approaches cases where mental disability arises from a combination of factors rather than a single, clearly diagnosed condition. The Tribunal found that RN had a mental disability comprising two core elements:

First, a histrionic personality disorder, which the Tribunal described by reference to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, as "an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment" (RN [2025] WASAT 46 at [35]). The Tribunal noted specific features including high suggestibility, being easily influenced by others, and being "overly trusting, especially of strong authority figures whom they see as magically solving their problems" (RN [2025] WASAT 46 at [36]).

Second, a low average IQ that "contributes to her poor judgment and limited financial literacy" (RN [2025] WASAT 46 at [39]). The Tribunal emphasized that cognitive screening tools like the Montreal Cognitive Assessment or Rowland Universal Dementia Assessment Scale may not capture impairments in higher-order executive functions, noting that "being able to make a deliberated, informed decision after weighing up the pros and cons of different options, which is the type of decision-making the Tribunal is concerned with, falls into this highest category of executive functions" (RN [2025] WASAT 46 at [41]).

The Tribunal also identified "a further aspect of RN's mental disability, or a symptom of it," namely her "abnormal susceptibility to being exploited or coerced, and her inability to identify when it is occurring" (RN [2025] WASAT 46 at [43]). Importantly, the Tribunal stressed that "the fact that a person is a victim of a scam does not of itself mean that a person has a mental disability" but found that RN demonstrated "a pattern, over the course of her life, of being persuaded or pressured into making decisions that are not in her best interests" (RN [2025] WASAT 46 at [43]). This susceptibility to exploitation was viewed as a manifestation of the underlying mental disability rather than a separate constituent element.

Distinguishing Temporary Conditions

The Tribunal in RN [2025] WASAT 46 also addressed the distinction between mental disability and temporary emotional responses. While RN was diagnosed with an adjustment disorder, defined as "an emotional or behavioural response to an identified stressor, with such distress being out of proportion to the severity or intensity of the stressor," the Tribunal specifically noted that it "have not relied on this diagnosis as a basis for RN's mental disability" because adjustment disorders are temporary and symptoms do not persist beyond six months after the stressor concludes (RN [2025] WASAT 46 at [48]-[49]).

The Tribunal concluded: "I am satisfied, and I find, that RN's condition falls within the meaning of 'mental disability' as described in FY, based on the most comprehensive and recent assessment of RN that was performed by Dr F. I am satisfied that the existence of the mental disability was clearly established by the evidence and is referable to the combination of the personality disorder, her low average IQ and her abnormal, and long-standing, susceptibility to being exploited" (RN [2025] WASAT 46 at [50]). This formulation suggests that while the susceptibility to exploitation forms part of the overall picture, the core mental disability comprises the personality disorder and low IQ, with the exploitation vulnerability being a significant manifestation of these underlying conditions.

Conclusion

The decision in RN [2025] WASAT 46 reinforces that determining whether a person has a mental disability for the purposes of the Guardianship and Administration Act 1990 (WA) requires a holistic assessment of their cognitive functioning and decision-making capacity. The Tribunal's approach demonstrates that mental disability can arise from a combination of factors that collectively impair a person's ability to make reasonable judgments, even where no single factor might be sufficient on its own. Importantly, the decision clarifies that vulnerability to exploitation, while not itself constituting a mental disability, can be a significant symptom or manifestation of underlying cognitive or psychiatric conditions. This nuanced approach ensures that vulnerable individuals who genuinely require protection can access the safeguards provided by the Act, while maintaining the high threshold required to override personal autonomy through the appointment of an administrator.

Permissible Variants in Defamation Pleadings: A Practitioner's Guide to Mond v The Age Company Pty Limited

1. Introduction

The decision in Mond v The Age Company Pty Limited [2025] FCA 442 provides significant guidance on the boundaries of permissible variants in defamation pleadings. Wheelahan J's judgment clarifies when courts may find defamatory meanings within the scope of pleaded imputations, even where those meanings differ from the precise formulations advanced by plaintiffs. This decision has substantial implications for how practitioners frame imputations and conduct defamation proceedings.

The case demonstrates the tension between procedural fairness to defendants and the substantive rights of plaintiffs to vindicate their reputations. Understanding the principles articulated in Mond is essential for practitioners advising clients on both sides of defamation disputes.

2. Background of Relevant Preceding Case Law

2.1 The Foundation: Chakravarti v Advertiser Newspapers

The High Court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 established fundamental principles regarding the boundaries of pleaded meanings in defamation cases. At [21]-[22], Brennan CJ and McHugh J held that a plaintiff's case may extend to meanings that are:

• Comprehended in the pleaded meaning

• Less injurious than the pleaded meaning

• A mere shade or nuance of the pleaded meaning

However, their Honours emphasised at [19] that a plaintiff cannot seek a verdict on a meaning so different from that pleaded that the defendant would have been entitled to plead different issues, adduce different evidence, or conduct the case on a different basis.

2.2 The Modern Framework: ABC v Chau Chak Wing

The Full Federal Court in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632 clarified the application of Chakravarti principles. At [33], the Court confirmed that plaintiffs may allege multiple distinct defamatory imputations and may plead imputations in the alternative.

Significantly, the Court in ABC v Wing at [87] recognised that plaintiffs are entitled to seek vindication on specific points through their pleaded imputations. This reinforces the role of pleadings in defining the territory for dispute.

2.3 Hore-Lacy Meanings

David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667 established that defendants may plead alternative meanings to support positive defences. These "Hore-Lacy meanings" allow defendants to advance defences to meanings they contend are permissible variants of the plaintiff's imputations.

3. Facts of Mond v The Age Company

3.1 The Parties and Context

David Mond served as president of the Caulfield Hebrew Congregation from September 2018 to October 2021 (at [13]). The respondents comprised The Age Company Pty Ltd, Fairfax Media Publications Pty Ltd, and journalists Stephen Brook and Samantha Hutchinson (at [2]).

3.2 The Publications

Seven articles were published in The Age's "CBD" column between May 2021 and February 2022:

1. 5 May 2021 articles: Reported controversy over Mr Mond agreeing to host Jonathan Pollard, a convicted spy, at a Jerusalem Day event (at [4], [25])

2. 13 December 2021 articles: Referenced the earlier controversy and reported on the board's apology to Adam Slonim following Mr Mond's critical email about him (at [4], [29])

3. 18 February 2022 articles: Claimed divisions at the synagogue persisted and attendance at Rabbi Rabin's inauguration was low (at [4], [31])

3.3 The Pleaded Imputations

Mr Mond pleaded complex, rolled-up imputations. For the 13 December 2021 articles, these included (at [118]):

• That he was "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation"

• That his "previous actions have inflicted lingering damage on CHC"

• That he "compounded the damage" by his "lack of consultation" and by sending an email that "forced the Board to issue an extraordinary apology"

3.4 The Respondents' Alternative Meanings

The respondents pleaded Hore-Lacy meanings including (at [120]):

• That Mr Mond "agreed to host an address by a person who was convicted of spying for Israel without appropriately consulting the Senior Rabbi"

• That he "had damaged the standing of the Caulfield Shule by sending an ill-considered and defamatory email"

4. The Court's Determinations on Specific Imputations

4.1 The 5 May 2021 Articles

The Court's treatment of the first publications demonstrates the importance of precision in identifying defamatory stings.

Plaintiff's pleaded imputations (at [93]):

• Mr Mond was "so lacking in judgment that he recklessly agreed to host a convicted spy at an important event for Melbourne's Orthodox Jewish community without appropriate consultation"

• Mr Mond was "a disruptive person who has caused uproar within the Orthodox Jewish community"

The Court's findings (at [101]-[105]): Wheelahan J held that these imputations were not conveyed. The critical finding was that the articles contained no suggestion about whether consultation was required, expected, or had occurred. The judge stated at [102]: "the article says nothing about whether consultation was required, or expected, or took place."

The Court found that while the articles conveyed the existence of controversy and implied questions about judgment, they did not support the specific elements of the pleaded imputations regarding lack of consultation or the applicant being a "disruptive person."

Significance: The plaintiff failed entirely on these articles because the pleaded imputations contained necessary elements not supported by the publications.

4.2 The 13 December 2021 Articles

These articles produced mixed results, demonstrating how courts parse complex imputations.

Imputation 11(a) - "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation" (at [118]):

• Finding: Partially upheld in a lesser form (at [130])

• Reasoning: The "extravagant adverbs 'recklessly and autocratically'" were not conveyed, but the articles did convey that Mr Mond decided to host the speech without consulting Rabbi Genende when he should have

• Key passage: "The ordinary reasonable reader would understand the articles as conveying that the applicant thereby caused the 'rift'"

Imputation 11(c) - "Mr Mond's previous actions have inflicted lingering damage on CHC":

• Finding: Upheld (at [131])

• Reasoning: The reference to "previous actions" encompassed both the lack of consultation and the August email to members

Imputation 11(d) - Mr Mond "compounded the damage" by lack of consultation and by sending an email that "forced the Board to issue an extraordinary apology":

• Finding: Substance conveyed (at [132])

Imputation 11(e) - "so lacking in judgment due to his reckless and autocratic personality that his wrongful conduct on multiple occasions has created a mess at CHC":

• Finding: Not conveyed (at [133])

• Reasoning: Essential elements including "reckless and autocratic personality" were not established

4.3 The 18 February 2022 Articles

The Court's analysis of the final articles shows how repetition of false claims across publications affects findings.

Imputation 13(a) - "created bad times at CHC through his wrongful conduct by hosting a speech by a convicted spy without appropriate consultation":

• Finding: Substance conveyed (at [152])

• Reasoning: Despite the "elusive term" of "wrongful conduct," the articles implied the applicant's failure to consult was wrong

Imputation 13(e) - "compounded the damage he has inflicted on CHC by hosting a speech by a convicted spy without appropriate consultation by a further incident" involving the Slonim email:

• Finding: Substance conveyed (at [153])

• Reasoning: The articles stepped through episodes conveying that Mr Mond compounded damage from the rift with further conduct

Imputation 13(f) - "the divisions Mr Mond has created within CHC... have been so serious that they have not yet been able to be remedied":

• Finding: Conveyed (at [155])

• Reasoning: References to "bad times" and "divisions at the synagogue still exist" supported this meaning

5. Analysis of the Court's Reasoning

5.1 The Framework for Permissible Variants

Wheelahan J articulated key principles at [79]-[82]:

1. The cause of action is publication of matter, not imputations: Under s 8 of the Defamation Act 2005 (Vic), publication gives rise to a single cause of action even if multiple defamatory imputations are conveyed.

2. Pleadings shape but do not rigidly confine the issues: While an applicant's case is shaped by pleaded meanings, it may extend to permissible variants.

3. Procedural fairness is paramount: Courts will not allow applicants to succeed on meanings so different from those pleaded that defendants would have conducted their case differently.

4.2 Application to Specific Imputations

The Court's treatment of Mr Mond's imputation 11(a) illustrates the analysis (at [129]-[130]):

Pleaded imputation: Mr Mond was "so lacking in judgment that he recklessly and autocratically decided to host a speech by a convicted spy at CHC without consultation"

Finding: While the "extravagant adverbs 'recklessly and autocratically'" were not conveyed, a lesser defamatory meaning was established - that Mr Mond decided to host the speech without consulting Rabbi Genende when he should have.

This demonstrates how courts may strip away hyperbolic elements while finding the essential sting remains.

4.3 The Role of Defendants' Alternative Meanings

Wheelahan J held at [87] that where defendants plead Hore-Lacy meanings as permissible variants of plaintiffs' imputations, these may constitute meanings on which plaintiffs are entitled to succeed. This is because defendants' alternative meanings are premised on being bound up with plaintiffs' imputations.

However, the Court emphasised three qualifications at [88]:

1. Where plaintiffs expressly or impliedly exclude meanings other than those strictly pleaded

2. Where imputations contain necessary elements whose absence materially changes the case

3. Where accepting variants of defendants' alternative meanings would constitute "variants on variants"

5. Quantification and Assessment of Damages

5.1 The Serious Harm Threshold

For publications after 1 July 2021, s 10A of the Defamation Act requires proof of serious harm to reputation. The Court's analysis at [406]-[412] demonstrates:

• Each defamatory matter must independently satisfy the serious harm element

• Harm from different publications cannot be aggregated unless they constitute the same matter

• Inference of serious harm may arise from extent of publication and importance of the reputational aspect affected

5.2 Damages Assessment

The Court awarded $120,000 in damages (at [530]), considering:

Mitigating factors:

• One sting (regarding the email about Mr Slonim) was substantially true (at [441])

• The defamatory meanings sat "in the lower end of the spectrum of seriousness" (at [410])

Aggravating factors:

• The false claim about failing to consult was repeated across multiple articles

• The articles targeted Mr Mond personally in a mocking tone (at [483])

6. Worked Example: Practical Application

6.1 From the Plaintiff's Perspective

Scenario: A company CEO is accused in a newspaper article of "corruptly and dishonestly manipulating financial records to deceive shareholders"

Pleading strategy:

1. Primary imputation: The CEO corruptly and dishonestly manipulated financial records

2. Alternative imputation: The CEO engaged in financial misconduct

3. Further alternative: The CEO mismanaged company finances

At trial: If evidence shows financial irregularities but not corruption, the plaintiff may succeed on the lesser variant of financial misconduct, provided it remains within the pleaded case's boundaries.

6.2 From the Defendant's Perspective

Defence strategy:

1. Deny all imputations

2. Plead Hore-Lacy alternative: "The CEO made accounting errors that required correction"

3. Advance justification defence to this lesser meaning

Advantage: By pleading the alternative meaning, the defendant shapes the permissible variants available to the plaintiff while positioning defences to those variants.

7. Step-by-Step Guidance for Practitioners

7.1 For Plaintiff's Counsel

1. Draft imputations at multiple levels: Include primary and alternative formulations capturing different degrees of seriousness

2. Avoid unnecessary hyperbole: Extravagant language risks the court finding no imputation was conveyed

3. Consider defendants' likely alternatives: Anticipate Hore-Lacy meanings and ensure your alternatives encompass them

4. Preserve flexibility: Avoid language that locks you into single interpretations

7.2 For Defendant's Counsel

1. Analyse the boundaries: Identify what variants might fall within plaintiff's pleadings

2. Plead strategic alternatives: Use Hore-Lacy meanings to define the playing field

3. Focus defences appropriately: Target defences to both pleaded and variant meanings

4. Document the basis for meanings: Ensure evidence supports any alternative meanings advanced

8. Evidence and Arguments for Each Side

8.1 Plaintiff's Evidence and Arguments

Evidence to lead:

• Extent of publication and readership data

• Impact on specific reputational interests

• Evidence negativing any truth in extravagant elements

Arguments to advance:

• Natural progression from greater to lesser meanings

• Defendants' alternatives confirm variants are within pleaded case

• Procedural fairness not compromised as defendants addressed these meanings

8.2 Defendant's Evidence and Arguments

Evidence to lead:

• Factual basis supporting alternative meanings

• Context showing why lesser meanings are appropriate

• Evidence of plaintiff's prior conduct relevant to mitigation

Arguments to advance:

• Plaintiff's imputations contain essential elements not established

• Accepting variants would require different defence evidence

• Alternative meanings are maximum extent of liability

9. Key Takeaways for Legal Practice

1. Precision in pleading remains crucial: While variants are permissible, poorly drafted imputations risk complete failure

2. Strategic use of alternatives: Both sides should utilise alternative formulations to shape the boundaries of dispute

3. Evidence must address variants: Parties cannot assume courts will only consider precise pleaded meanings

4. Procedural fairness governs: Courts will not permit variants that would have changed how defendants conducted their case

5. Hyperbole is dangerous: Extravagant language in imputations risks defeating the entire claim

10. Conclusion: Broader Significance

Mond v The Age Company reinforces that defamation pleadings require careful strategic consideration. The decision confirms that while courts retain flexibility to find meanings within the boundaries of pleaded cases, this flexibility has defined limits.

The judgment provides clarity on how Hore-Lacy alternatives interact with plaintiffs' imputations, confirming that defendants' alternatives may inadvertently expand the meanings available to plaintiffs. This creates tactical considerations for both sides in framing their cases.

Most significantly, Mond demonstrates that successful defamation litigation requires more than identifying defamatory publications. It demands precise articulation of meanings that capture the essential sting while maintaining sufficient breadth to encompass likely findings. Practitioners who master these principles will better serve their clients' interests, whether seeking vindication or defending freedom of expression.

The decision ultimately strikes a balance between allowing plaintiffs reasonable latitude in seeking vindication and protecting defendants from unfair procedural prejudice. This balance reflects the fundamental tension in defamation law between protecting reputation and preserving open discourse - a tension that careful pleading can help resolve.

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67: A Comprehensive Analysis of the Standard of Proof for Serious Civil Allegations

1. Introduction: The Enduring Significance of Briginshaw in Contemporary Civil Litigation

The Full Court's decision in Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67 represents a watershed moment in the application of the standard of proof to grave civil allegations. This case provides essential guidance on how courts approach allegations of criminal conduct within civil proceedings, particularly where such allegations involve matters of profound public interest and severe reputational consequences.

The decision's significance extends beyond defamation law, offering critical insights into:

• The practical application of s 140(2) of the Evidence Act 1995 (Cth)

• The contemporary relevance of Briginshaw v Briginshaw (1938) 60 CLR 336

• The interplay between the presumption of innocence and civil burden of proof

• The assessment of evidence quality when determining serious allegations

This analysis examines how the Court navigated the delicate balance between maintaining the civil standard of proof whilst ensuring appropriate rigour when adjudicating allegations of war crimes—arguably among the most serious allegations possible in civil proceedings.

2. The Evolution of Legal Principles: From Briginshaw to Section 140

2.1 The Foundation: Briginshaw v Briginshaw

The High Court's decision in Briginshaw v Briginshaw (1938) 60 CLR 336 established the fundamental principle that whilst the civil standard remains the balance of probabilities, the degree of satisfaction required varies with the gravity of the allegation. Dixon J articulated this principle at 361-362:

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found... reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved."

This formulation introduced three critical considerations:

1. The seriousness of the allegation made

2. The inherent unlikelihood of an occurrence

3. The gravity of the consequences flowing from a finding

2.2 Subsequent Development

The principle evolved through several key decisions:

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449: The High Court confirmed that "clear, or cogent or strict proof is necessary where so serious a matter as fraud is to be found" (at 450). This decision emphasised that the quality of evidence, not merely its quantity, determines whether the requisite satisfaction is achieved.

Qantas Airways Limited v Gama (2008) 167 FCR 537: The Full Federal Court clarified that Briginshaw does not create a third standard of proof but rather informs the application of the existing civil standard (at [139]).

2.3 Statutory Codification: Section 140

The Evidence Act 1995 (Cth) codified these principles:

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.

This provision explicitly requires courts to consider the gravity of allegations when determining whether the balance of probabilities is satisfied, effectively incorporating the Briginshaw principle into statute.

3. The Roberts-Smith Litigation: Factual Matrix and Procedural History

3.1 The Parties and Claims

Appellant: Ben Roberts-Smith VC, MG, a decorated former member of the Special Air Service Regiment (SASR), recipient of the Victoria Cross and Medal for Gallantry.

Respondents: Fairfax Media Publications Pty Limited, The Age Company Pty Ltd, The Sydney Morning Herald, and journalists Nick McKenzie, Chris Masters, and David Wroe.

3.2 The Publications and Imputations

The proceedings arose from articles published in June 2018 alleging various acts of misconduct during the appellant's service in Afghanistan. The defamatory imputations, as found by the primary judge, included that the appellant:

1. Whiskey 108 (2009): Murdered an unarmed Afghan civilian by kicking him off a cliff and procuring soldiers to shoot him (J[5])

2. Darwan (2012): Murdered an unarmed Afghan by machine gun fire (J[6])

3. Chinartu (2012): Committed murder by pressuring a subordinate soldier to execute an elderly, unarmed Afghan (J[7])

4. Engaged in domestic violence against his mistress (J[8])

5. Bullied and threatened fellow soldiers (J[9])

3.3 The Defence of Truth

The respondents pleaded substantial truth under s 25 of the Defamation Act 2005 (NSW), contending that the imputations conveyed by the articles were substantially true (J[1]). This defence required them to prove, on the balance of probabilities, that the appellant had committed the alleged acts.

3.4 The Primary Judgment

Following a 110-day trial involving 44 witnesses (J[32]), Besanko J delivered judgment on 1 June 2023. His Honour found:

• The articles conveyed defamatory imputations about the appellant

• The defence of substantial truth succeeded for the murder allegations at Whiskey 108, Darwan, and Chinartu

• The defence failed for certain other imputations, including allegations concerning missions at Fasil and allegations of domestic violence

Critically, the primary judge made express findings that:

• At Whiskey 108: EKIA56 was executed by Person 4 on the appellant's direction, and EKIA57 was murdered by the appellant with machine gun fire (J[5])

• At Darwan: The appellant murdered Ali Jan with machine gun fire (J[6])

• At Chinartu: The appellant directed Person 4 to execute an elderly, unarmed Afghan (J[7])

3.5 The Appeal

The appellant advanced 41 grounds of appeal (J[13]), including challenges to:

• The application of s 140 and Briginshaw principles (Ground 19)

• Specific factual findings regarding each incident

• The primary judge's assessment of witness credibility

• The admission and use of tendency evidence

4. The Court's Analysis: Applying Briginshaw in Practice

4.1 The Standard Articulated

The Full Court (Allsop CJ, Besanko and Lee JJ) began by reaffirming fundamental principles:

1. The standard remains civil: Despite the criminal nature of the allegations, "the standard of proof is the balance of probabilities, not the criminal standard" (J[16])

2. No intermediate standard exists: There is "no shifting standard of proof" or "third standard" between civil and criminal (J[17])

3. Quality of evidence varies: The Briginshaw principle affects "the strength or cogency of the evidence necessary to establish a fact on the balance of probabilities" (J[18])

4.2 The Primary Judge's Approach

The Court found that Besanko J had correctly applied these principles:

"The primary judge discussed the law at some length... He repeatedly reminded himself of those principles. We are satisfied that the primary judge was acutely conscious of the seriousness of the findings the respondents called upon him to make and of the necessity that he be reasonably satisfied that the imputations were substantially true without resorting to inexact proofs, indefinite testimony or indirect inferences." (J[23])

4.3 Practical Application to Evidence

The Court identified several examples demonstrating the primary judge's rigorous approach:

Fasil Mission: Despite evidence from an SASR member about misconduct, the primary judge declined to find this imputation true because identification evidence was not "sufficiently clear and cogent" (J[24]-[25])

Person 17 Assault: Evidence of an alleged assault was rejected as insufficiently reliable given the gravity of the allegation (J[26])

Reliance on Eyewitness Testimony: Where findings were made, they were "largely relied on eyewitness accounts" rather than inference or speculation (J[23])

4.4 The Presumption of Innocence

The Court addressed the appellant's argument regarding the presumption of innocence:

1. The presumption operates as a factor influencing the required cogency of evidence (J[19])

2. The primary judge explicitly considered this presumption (J[23], citing J[114] of the primary judgment)

3. The presumption does not create a different standard but informs the assessment of whether evidence is sufficiently cogent

4.5 Credibility Findings and Appellate Restraint

The Court emphasised the "natural limitations" on appellate review of credibility findings (J[32]), particularly where:

• The trial extended over 110 days

• The primary judge observed 44 witnesses

• Credibility assessments were central to the factual findings

• The appellant's credibility was comprehensively rejected

5. Quantification and Assessment: The Judicial Calculus

5.1 The Nature of Assessment

The assessment required under s 140 and Briginshaw is not mathematical but qualitative. The Court explicitly noted that the primary judge "did not engage in any mechanical comparison of probabilities divorced from a belief in the occurrence or existence of the matters in dispute" (J[24]).

5.2 Factors in the Assessment Matrix

The following factors influence the required cogency of evidence:

A. Intrinsic Factors

1. Gravity of Allegation: Murder allegations require the highest degree of cogency

2. Consequences: Reputational destruction, criminal investigation, loss of honours

3. Inherent Probability: Courts must consider whether the alleged conduct is inherently unlikely

B. Evidence Quality Indicators

1. Directness: Eyewitness testimony preferred over circumstantial evidence

2. Consistency: Internal consistency and consistency with objective facts

3. Corroboration: Multiple independent sources strengthening the evidence

4. Contemporaneity: Evidence closer in time to events generally more reliable

5. Credibility: Honesty and reliability of witnesses

C. Contextual Considerations

1. Documentary Support: Contemporaneous documents enhancing reliability

2. Motive to Fabricate: Absence of apparent bias or interest

3. Opportunity to Observe: Witness proximity and capacity to perceive events

5.3 The Sliding Scale in Practice

The required cogency operates on a sliding scale that increases with the severity of the allegation. Understanding this progression helps practitioners calibrate their evidence gathering and assessment strategies.

At the lower end of the spectrum, minor civil wrongs require only standard civil evidence meeting the basic balance of probabilities test. These might include simple contractual breaches or minor negligence claims where no serious moral culpability is alleged.

Moving up the scale, professional misconduct allegations demand clear and convincing evidence. In the Roberts-Smith case, the bullying allegations against fellow soldiers fell into this category. The evidence needed to be more than merely probable; it needed to be clear and persuasive given the professional consequences such findings would entail.

Fraud and dishonesty allegations require clear, cogent, and strict proof. This elevated standard reflects both the moral opprobrium attached to findings of dishonesty and the severe consequences for professional and personal reputation. In Roberts-Smith, allegations that the appellant gave false evidence to investigations would fall within this category, demanding evidence of particularly high quality.

At the apex of the scale, criminal conduct allegations—particularly serious crimes—require highly cogent and compelling evidence. The murder allegations in Roberts-Smith exemplified this highest category. The evidence needed to be of such quality that it could produce reasonable satisfaction despite the inherent improbability of a decorated soldier committing war crimes and the devastating consequences of such findings.

5.4 Practical Application in Roberts-Smith

The Court's analysis reveals how this assessment operated:

1. Multiple Witnesses: The murder findings relied on testimony from multiple SASR members who were present at the incidents

2. Consistency on Core Facts: Whilst witnesses differed on peripheral details, their accounts were consistent on central allegations

3. Absence of Contamination: The primary judge considered but rejected arguments of collusion or contamination

4. Credibility Differential: The comprehensive rejection of the appellant's credibility contrasted with acceptance of key prosecution witnesses

6. Worked Example: Practical Application in Commercial Fraud Litigation

Consider a civil claim where Company B alleges Company A engaged in systematic fraud through financial statement manipulation, causing $50 million in losses.

6.1 Company B's Perspective (Plaintiff/Alleging Party)

Strategic Considerations:

• Fraud carries severe reputational consequences requiring cogent evidence

• Must overcome inherent improbability of established company committing fraud

• Need evidence of both falsity and intention

Evidence Assembly:

1. Documentary Foundation

   • Forensic accounting analysis showing systematic discrepancies

   • Email communications indicating knowledge of falsity

   • Board minutes revealing awareness of issues

   • Whistleblower statements with contemporaneous notes

2. Witness Evidence

   • Former CFO willing to testify about pressure to manipulate figures

   • Independent auditor identifying red flags ignored by management

   • Multiple employees corroborating culture of deception

3. Pattern Evidence

   • Demonstration of repeated conduct over multiple reporting periods

   • Evidence of cover-up attempts when questions arose

   • Correlation between misstatements and executive bonuses

Argument Structure:

"Whilst we acknowledge fraud is a serious allegation requiring cogent proof, the evidence surpasses this threshold. We present not mere suspicion but a compelling mosaic: forensic analysis revealing systematic manipulation, contemporaneous documents showing intent, and consistent testimony from multiple independent witnesses. This is not inexact proof or indefinite testimony—it is clear, cogent evidence establishing deliberate deception."

Key Submissions on Standard:

• Acknowledge the Briginshaw requirement explicitly

• Demonstrate how evidence meets the "clear and cogent" threshold

• Address each element of fraud with specific, compelling evidence

• Emphasise multiple independent sources of verification

6.2 Company A's Perspective (Defendant/Responding Party)

Strategic Considerations:

• Emphasise gravity of fraud allegation and required proof standard

• Challenge evidence quality rather than quantity

• Provide innocent explanations for suspicious circumstances

Defensive Evidence:

1. Alternative Explanations

   • Expert evidence on accounting judgment legitimacy

   • Industry practice evidence supporting interpretations

   • Documentation of good faith decision-making processes

2. Credibility Challenges

   • Motivation of whistleblowers (dismissed employees)

   • Inconsistencies in witness accounts

   • Lack of contemporaneous complaint

3. Systemic Defences

   • Robust internal controls and audit processes

   • Clean regulatory history

   • Professional advice supporting accounting treatments

Argument Structure:

"The plaintiff bears the burden of proving fraud—an allegation of utmost gravity requiring the clearest and most cogent evidence. What they present falls materially short: disgruntled former employees with axes to grind, accounting disagreements recharacterised as deception, and a presumption of guilt from legitimate business difficulties. The evidence lacks the clarity, cogency and compelling nature required by Briginshaw for such devastating allegations."

Key Submissions on Standard:

• Emphasise that suspicion, however grave, is insufficient

• Highlight gaps, inconsistencies and alternative explanations

• Invoke presumption of innocence as interpretive principle

• Demonstrate failure to meet Briginshaw threshold

7. Practitioner's Guide: Step-by-Step Approach

7.1 Initial Case Assessment

Step 1: Categorise the Allegations

• Identify all serious allegations (criminal conduct, fraud, professional misconduct)

• Assess reputational and legal consequences of adverse findings

• Determine applicable Briginshaw considerations

Step 2: Evidence Audit

• Catalogue available evidence by type and quality

• Assess cogency against Briginshaw requirements

• Identify evidence gaps requiring attention

Step 3: Strategic Planning

• Determine whether evidence meets required threshold

• Identify additional evidence needed

• Consider alternative causes of action with lower thresholds

7.2 Pleading Considerations

For Plaintiffs:

• Plead serious allegations with precision and particularity

• Ensure factual foundation for each element

• Consider whether lesser allegations might achieve client objectives

For Defendants:

• Challenge adequacy of particulars for serious allegations

• Reserve position on standard of proof arguments

• Consider strategic admissions on less serious matters

7.3 Evidence Gathering Phase

Documentary Evidence:

• Prioritise contemporaneous documents

• Seek corroborating documentation

• Preserve metadata and chain of custody

Witness Evidence:

• Identify witnesses with direct knowledge

• Assess credibility and potential bias

• Obtain signed statements early

• Consider expert evidence on industry standards

Strategic Considerations:

• Focus resources on evidence meeting cogency requirements

• Consider cost-benefit of pursuing marginal evidence

• Maintain evidence integrity throughout process

7.4 Pre-Trial Preparation

Witness Preparation:

• Explain significance of serious allegations

• Emphasise importance of clarity and precision

• Address potential credibility challenges

• Prepare for rigorous cross-examination

Expert Evidence:

• Ensure experts understand Briginshaw requirements

• Focus opinions on clear, demonstrable conclusions

• Avoid speculation or equivocation

7.5 Trial Strategy

Opening Submissions:

• Address standard of proof explicitly

• Preview evidence meeting Briginshaw requirements

• Frame case theory consistent with required cogency

Evidence Presentation:

• Lead with strongest, most direct evidence

• Build corroboration systematically

• Address credibility proactively

Cross-Examination:

• Target evidence quality, not just contradictions

• Explore bias and motivation

• Test reliability of observations

• Highlight absence of corroboration

Closing Submissions:

• Synthesise evidence against Briginshaw standard

• Address each serious allegation systematically

• Emphasise cumulative effect of cogent evidence (if plaintiff)

• Highlight evidential deficiencies (if defendant)

8. Evidence and Arguments: Detailed Strategic Analysis

8.1 For Parties Making Serious Allegations

Essential Evidence Components:

1. Primary Evidence

   • Direct witness testimony from participants

   • Contemporaneous documents showing intent

   • Admissions or inconsistent statements

   • Expert analysis of objective facts

2. Corroborative Evidence

   • Multiple independent witnesses

   • Documentary trails supporting testimony

   • Circumstantial evidence forming coherent pattern

   • Post-incident conduct suggesting guilt

3. Credibility Enhancement

   • Evidence of witness independence

   • Absence of motive to fabricate

   • Consistency with objective facts

   • Prior consistent statements

Argument Framework:

• Acknowledge gravity of allegations upfront

• Demonstrate evidence exceeds Briginshaw threshold

• Address each element with specific, cogent proof

• Emphasise multiple sources of verification

• Distinguish from criminal standard whilst meeting civil requirements

8.2 For Parties Defending Serious Allegations

Defensive Evidence Strategy:

1. Direct Contradiction

   • Witness testimony refuting allegations

   • Documentary evidence disproving claims

   • Expert evidence challenging interpretations

   • Alibi or impossibility evidence

2. Credibility Attacks

   • Evidence of bias or motive

   • Prior inconsistent statements

   • Collusion or contamination

   • Memory reliability challenges

3. Alternative Narratives

   • Innocent explanations for suspicious facts

   • Industry practice evidence

   • Contextual evidence changing interpretation

   • Good character evidence (where admissible)

Argument Framework:

• Emphasise exceptional gravity requiring exceptional proof

• Systematically identify evidential deficiencies

• Challenge quality, not just quantity of evidence

• Invoke presumption of innocence

• Demonstrate reasonable alternative explanations

9. Key Practice Points: Lessons from Roberts-Smith

9.1 For Litigation Strategy

1. Evidence Quality Paramount: Multiple weak sources cannot substitute for cogent proof

2. Credibility Crucial: Adverse credibility findings can be case-determinative

3. Details Matter: Minor inconsistencies in serious allegations can be fatal

4. Context Essential: Understanding operational/industry context affects assessment

9.2 For Evidence Management

1. Preserve Contemporaneous Records: These carry exceptional weight

2. Witness Statements Early: Memory degradation affects cogency

3. Expert Evidence Carefully: Must be clear and compelling, not equivocal

4. Corroboration Systematically: Build mutually reinforcing evidence

9.3 For Client Management

1. Realistic Assessment: Clients must understand heightened proof requirements

2. Cost Implications: Proving serious allegations requires substantial resources

3. Risk Analysis: Consider reputational damage even if successful

4. Alternative Strategies: Lesser allegations might achieve objectives

9.4 For Procedural Management

1. Pleadings Precision: Particulars crucial for serious allegations

2. Discovery Breadth: Cast wide net for corroborative evidence

3. Witness Management: Credibility preparation essential

4. Appeal Prospects: Credibility findings create high appellate barrier

10. Conclusion: The Enduring Relevance of Principled Analysis

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) demonstrates that the Briginshaw principle remains vital in contemporary litigation. The decision confirms that courts can and will make findings of the most serious nature in civil proceedings where evidence meets the required standard of cogency.

The case establishes several enduring principles:

1. No Sliding Scale of Standards: The civil standard remains constant; only evidence quality requirements vary

2. Gravity Demands Cogency: The more serious the allegation, the more compelling the evidence must be

3. Judicial Method Matters: Courts must explicitly consider gravity when assessing evidence

4. Credibility is Central: In serious matters, credibility findings often determine outcomes

5. Appellate Deference Applies: Factual findings based on credibility assessment face high appellate barriers

For practitioners, Roberts-Smith provides both cautionary lessons and practical guidance. Those making serious allegations must assemble evidence of exceptional quality, whilst those defending such allegations can invoke Briginshaw to challenge evidential sufficiency.

Ultimately, the decision reaffirms that civil justice can address the most serious allegations whilst maintaining principled distinctions between civil and criminal standards. The Briginshaw principle, now embodied in s 140 of the Evidence Act, ensures that grave allegations receive appropriately rigorous scrutiny without abandoning the fundamental civil standard of proof.

This balance—between accessibility of civil justice and protection against unfounded serious allegations—remains essential to the integrity of our civil justice system. Roberts-Smith demonstrates that this balance, whilst delicate, can be maintained through rigorous judicial method and careful attention to evidence quality.

Note: This analysis is based on the reported decision and is intended for educational and professional development purposes. Practitioners should consult primary sources and seek specific advice for particular matters.